IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Jane Doe Henderson
CA NO. 91-805-20K
The United States
The Palmetto Bank,
Federal Savings and
Southern National Bank of
Carolina, Interstate Johnson
Corporation, and NCNB
Bank of South
This matter is before the
court on a petition to quash certain Internal Revenue summonses.
The internal Revenue Service ( IRS ) issued
five (5) summonses between March 15, 1991 and June 7, 1991, in the
course of an investigation of James M. Henderson and Mary Henderson
(collectively the "Henderson's ). The IRS was attempting to
determine the correct federal income tax liability of the
Henderson's for the years of 1985, 1986, 1987, 1988 and1989, and to
inquire into any offense connected with the administration or
enforcement of the internal revenue laws. The summonses were
directed to and served upon various financial institutions.' The
Henderson were given proper notice of each of the summonses.
The Henderson's filed a petition' to quash
the summonses. In this petition, the Henderson's assert that the
summonses were not properly attested that they were true copies of
the original when they were served. The United States has filed a
motion to dismiss the petition to quash and a petition to enforce
The court must first determine whether it
has jurisdiction to decide the petition to quash or the petition to
enforce the summonses. The IRS contends that this court lacks
jurisdiction to decide the petition to quash as it relates to the
summonses directed to Interstate Johnson Lane Corp. and C&S
Bank. In general, the United States, and therefore the IRS, is
immune to Suit except where the Congress has expressly waived
immunity by statute. See United States v. Sherwood, 312 U.S.
584 (1941). In the Internal Revenue Code, Congress has waived
sovereign immunity in certain instances. "The United States
district court shall have jurisdiction to hear and determine any
proceeding [properly brought to quash an IRS summons] . . .
." 26 U.S.C. §7609(h)(l). A person has the right to
begin a proceeding
It is not disputed that the IRS has the
authority to issue summonses for these purposes.
See 26 U.S.C. §7602(a) & (b).
The summonses were to (1) Palmetto Bank, served March 15, 1991; (2)
Heritage Federal S & L, served March 15, 1991; (3) C&S Bank,
served March 21, 1991; (4) Interstate Johnson Lane Corp., served May
17, 1991; and (5) NCNB Bank, served June 7, 1991.
The petition to quash was originally filed on March 22, 1991
seeking to quash the summonses directed to Heritage Federal S & L
and Palmetto Bank. An amended petition was filed on April 18,
1991 seeking in addition to quash the summons to C & S Bank. A
second amended petition was filed on June 7, 1991 seeking
in addition to quash the summons to Interstate Johnson Lane. A third
amended petition was filed on June 25, 1991 seeking additionally to
quash the summons to NCNB Bank.
quash a summons not later than the 20th day after the day he is
given notice of the summons in the manner required by the law. 26
U.S.C. §7609(b)(2). Therefore, if a proceeding to quash is not
begun within the twenty day period, the district court is without
jurisdiction to quash the summons. In this case, the Henderson's
were given notice sufficient under the law of the summons to c&s
Bank on March 22, 1991. A proceeding must have been begun by April
11, 1991. The Henderson's did not amend the petition to quash to
include this summons until April 18, 1991. The Henderson's were
given notice sufficient under the law of the summons to Interstate
Johnson Lane Corp. on May 17, 1991. A proceeding must have been
begun by June 6, 1991. The Henderson's did not amend the petition to
quash to include this summons until June 7, 1991. Therefore, the
Henderson's did not meet the jurisdictional deadline to begin
proceedings to quash these two summonses, and this court lacks
jurisdiction to decide the petition to quash as it relates to the
summonses to Interstates Johnson Lane Corp. and C&S Bank.'
The summonses were issued by agent Suzanne
Bell. Agent Bell, in her affidavit, stated that the books, records,
papers, and other data sought are either not in the possession of
the IRS or are not readily accessible without undue administrative
burden and expense. She further stated that the information sought
is necessary and relevant to the investigation and that no referral
to the Department of Justice for criminal proceedings has been made.
Bell also stated that all administrative procedures had been
This court does, however, have jurisdiction to decide
the petition to enforce as it relates to all of the summonses. 26
U.S.C. §7604(a). Jurisdiction to determine questions of enforcement
is granted independently from jurisdiction to determine a petition
to quash. S~ 26 U.S.C. §7604(a) and 7609(h)(l)
enforce the summonses, the United States need only show that the
summonses were issued for a legitimate purpose, that the data sought
may be relevant to that legitimate purpose, that the data is not
already in the government's possession, and that the administrative
steps required by the Internal Revenue Code were followed. United
Stales v. Powell, 379 U.S. 48 (1964); United States v.
LaSalle National Bank, 437 U.S. 298, 313-14 (1978); Alphin
vs. United States 809 F 2d 236 (4th Cir. 1987). The IRS may
establish its prima facie case by an affidavit of the
investigating agent averring the four elements from Powell. Alphin
v. United States, 809 F.2d 236 (4th Cir. 1987); In re Newton,
718 F.2d 1015, 1019 (11th Cir. 1983); United States v. Davis,
636 F.2d 1028 (5th Cir. 1981). The affidavit of agent Bell
establishes a prima facie case for enforcement. Since a prima
facie case is established, the burden shifts to the Henderson's
to show that the summonses should not be enforced.
The Henderson's assert that all of the
administrative steps required by the Internal Revenue Code were not
followed. The I-Henderson's contend that the IRS did not serve
"attested' copies of the original summonses. A summons issued
by the IRS "shall be served by the Secretary, by an attested
copy delivered in hand to the person to whom it is directed, or left
at his last and usual place of abode . . . 7 26 U.S.C. §7603. Mimick
v. United States, 91-1 USTC p. 50,070 (D.Neb. 1991)' appears to
be the only reported case that has interpreted what is an
"attested copy for purposes of 26 U.S.C. §7603. As the
district court in Nebraska did, this court looks to Black's Law
Dictionary to define the term "attested
5 This case is not reported in the Federal
Supplement. It also may be located at 1991 WL 34445 and 1991 U.S.
Dist. Lexis 1329.
"[A]n attested' copy of a document is one which has been
examined and compared with the original, with a certification or
memorandum of its correctness, signed by the person who examined it.
Black's Law Dictionary 117 (5th ed. 1979). Therefore, an attested
copy must have a written and signed certification that it is a
The copies of the summonses that are part
of the record in this case have no written and signed certification
that they are true copies of the original on them or attached to
them. The IRS does not contest the fact that the summonses that were
served did not have such a written and signed certification The IRS
contends that the statute does not require such a certification.
This court disagrees. This court finds that to be an attested copy,
the summons must have a written and signed certification or
memorandum that the copy is a true and correct copy of the original.
Therefore, the IRS failed to follow the administrative steps
required by the Internal Revenue Cede.
The Henderson's have shown that the IRS
failed to establish an element required under Powell for the
enforcement of a summons. The district court can deny enforcement of
a summons if it finds that the IRS has fallen short of establishing
the four elements from Powell. United States v. Michaud,
907 F.2d 750, 752 (7th Cir. l990)(en banc); Cf. Hintze
v. Internal Revenue Service, 879 F.2d 121 (4th Cir. 1989); United
States v. White, 853 F.2d 107 (2d Cir. 1988); United States
v. John G. Mutschler & Assoc.. Inc., 734 F.2d 363, 367 (8th
IRS contends that any failure to comply with the administrative
procedures was a minor flaw which should not preclude enforcement of
the summonses.' This court does not agree. Congress specifically
provided that a summons issued by the IRS "shall be
served by the Secretary, by an attested copy . . . ." 26
U.S.C. ~7603 (emphasis added). The word shall in a statute is
generally used to show that a certain action is mandatory.'
Therefore, the service of an attested copy in mandated by the
Internal Revenue Code.
It seems clear that a valid purpose for
this mandate is to assure the person receiving the summons that what
he received was in fact a true copy of the original summons. The
failure to serve an "attested copy deprives the person
receiving the summons of this assurance which Congress expressly
granted. This court finds that under the facts of this case, the
failure to follow the requirement of the Internal Revenue Code to
serve an attested copy precludes the enforcement of the summonses.
This court finds that it lacks subject
matter jurisdiction to decide the petition to quash as it relates to
the summonses to Interstate Johnson Lane Corp. and C&S Bank. The
petition must be dismissed in such parts as relate to these two
summonses. This court further finds
The IRS cites three cases for the
proposition that a minor flaw will not preclude enforcement: United
States v. Bank of Moulton, 614 F.2d 1063 (5th Cir. 1980)(IRS's
obtaining information prematurely did not preclude enforcement
because the violation was minor, and there was no harm caused by the
conduct); United States v. Texas Heart Institute, 755 F.2d
469 (5th Cir. 1985)(Even though notice requirement was not met,
summons was enforceable because the taxpayer had actual notice and
received every benefit of the administrative procedure), overruled
on other .grounds by United States v. Barrett, 837 F.2d
1341 (5th Cir. 1988); and United States v. Gilbert C. Swanson
Foundation. Inc., 772 F.2d
440 (8th Cir. 1985)(Failure to adhere
to IRS internal operating order did not preclude enforcement of a
Black's Law Dictionary 1233 (5th ed. 1979); and 39 Words and
Phrases, "Shall-In Statutes 122-30 (1953).
That the remaining three summons should be quashed becasue the
IRS failed to serve an attested copy of the summonses. For this same
reason, the court finds that the IRS is not entitled to enforcement
of any summones.
Based on the forgoing, it is
ORDERED that the motion of the
IRS to dismiss the petition is granted in part and denied in part.
It is further
ORDERED that the petition to
quash the summonses is dismissed in part and granted in part. It is
ORDERED that the petition for
enforcement is denied.
IT IS SO ORDERED.
Henry M. Herlong, Jr.
United States District Judge
Greenville, South Carolina
November 27, 1991
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